Kim Strickland v. John Jabe

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:12-cv-00019-JPJ-PMS. Copies to all parties and the district court. [999643158]. [14-6229]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-6229

KIM
M.
STRICKLAND,
Personal
Representative
Administrator of the Estate of Aaron A. Cooper,

and

Plaintiff - Appellant,
v.
HEATHER HALSEY, Corrections and Floor Officer, Red Onion
State Prison; TRACY GILMORE, Building Sergeant, Red Onion
State Prison; BRIAN MEADE, Corrections Officer, Red Onion
State Prison; ROBERT MULLINS, Corrections Officer, Red Onion
State Prison; FIRST NAME UNKNOWN BALL, (Female) Corrections
Officer, Control Booth, Red Onion State Prison; THREE
UNKNOWN CORRECTIONAL OFFICERS,
Defendants – Appellees,
and
HAROLD
W.
CLARKE,
Director,
Virginia
Department
of
Corrections; JOHN JABE, Director, Operations, Virginia
Department
of
Corrections;
JOHN
S.
GARMAN,
Regional
Director, Virginia Department of Corrections; TRACY RAY,
Warden, Red Onion State Prison; RICHARD ROWETTE, Assistant
Warden and Incident Commander, Red Onion State Prison;
LESLIE FLEMING, Major, Chief of Security, Red Onion State
Prison; TRAVIS MCCOY, Lieutenant, Shift and Watch Commander,
Red Onion State Prison; TONY ADAMS, Sergeant, Instructional
Investigator, Red Onion State Prison; JAMES BENTLEY,
Intelligence Officer, Red Onion State Prison; J. RICK
WIANDT, MSA, Investigator, Inspector General, Virginia
Department of Corrections; L. FLEMING (male) Lieutenant, Red
Onion State Prison,
Defendants.

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Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.
James P. Jones,
District Judge. (2:12-cv-00019-JPJ-PMS)

Argued:

March 24, 2015

Decided:

August 19, 2015

Before WYNN, FLOYD, and HARRIS, Circuit Judges.

Affirmed in part; reversed and remanded in part by unpublished
per curiam opinion.

Mary Lynn Tate, TATE LAW, PC, Abingdon, Virginia, for Appellant.
Henry
Keuling-Stout,
KEULING-STOUT,
P.C.,
Big
Stone
Gap,
Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This lawsuit arises from the murder of an inmate, Aaron
Cooper, by another inmate, Robert Gleason, at a maximum security
prison in Virginia.
and

administrator

Kim Strickland, the personal representative
of

Cooper’s

estate,

brought

suit

under

42

U.S.C. § 1983, alleging that a sergeant (Tracy Baird) and three
corrections officers (Heather Halsey, Brian Meade, and Robert
Mullins)

violated

the

Eighth

Amendment

indifferent to Cooper’s safety.

by

being

deliberately

In support, Strickland asserts

that the defendants took no measures to prevent Cooper’s murder,
despite knowing that Gleason had killed another inmate and that
he

threatened

to

kill

again.

She

also

asserts

that

the

defendants actively facilitated Cooper’s murder by, among other
things, agreeing not to search Gleason for the murder weapon in
exchange for Gleason providing them certain favors.
On

appeal,

we

must

decide

whether

the

district

court

correctly held that qualified immunity protects the defendants
from

Strickland’s

§

1983

claim.

For

the

reasons

set

forth

below, we agree that Baird and Halsey are entitled to qualified
immunity.
exist

as

On the other hand, disputed issues of material fact
to

Meade’s

and

Mullin’s

involvement

in

the

murder.

Accordingly, we affirm as to Baird and Halsey, and reverse and
remand as to Meade and Mullins.

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I.
Robert C. Gleason Jr. first entered prison in 2007 after
receiving

a

life

sentence

murder. 1

for

While

serving

his

sentence at Wallens Ridge State Prison, Gleason strangled his
cellmate,

Harvey

Watson

Jr.,

to

death.

During

a

court

appearance for Watson’s murder, Gleason declared that he would
kill again if he were not executed.

According to a Red Onion

sergeant present in the courtroom at the time, Gleason said, “it
might be one of these guys next time” and pointed to several
prison officers present in the courtroom.

J.A. 66-67.

this outburst, Gleason was not sentenced to death.
was

transferred

to

Red

Onion

State

Prison

Despite

Instead, he

(Red

Onion),

a

Security Level S facility housing Virginia’s most violent and
dangerous inmates.
After arriving at Red Onion, Gleason set about making good
on this threat to kill again.
Aaron

Cooper,

approximately

a
34

26-year-old
years

As his target, he settled on
inmate

for

a

1

serving

series

of

a

sentence

robberies

of
and

In reviewing de novo the district court’s order granting
summary judgment to the Defendants, we “view the facts and all
justifiable inferences arising therefrom in the light most
favorable to” Strickland, as the nonmoving party.
Libertarian
Party of Va. v. Judd, 718 F.3d 308, 312 (4th Cir. 2013).
The
following statement of facts conforms to this standard.

4

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Gleason testified that he befriended Cooper in

order to gain his trust.

Gleason then convinced Cooper to go

along with a plan in which Cooper would fake being strangled by
Gleason in order to bring suit against the prison.

Gleason

testified that he told Cooper, “I want you to take a deep breath
so you can pass out so if they do a polygraph test on you if
they ask you did you actually pass out from Mr. Gleason choking,
pulling on the rope.”
made that up.

J.A. 97.

But, according to Gleason, “I

That was never going to happen.

going to happen.

I was going to kill him.”

That was never

J.A. 88.

Gleason

wanted to make the Department of Corrections look stupid because
“they kept on saying this is Red Onion, this ain’t going to
happen up here.”

J.A. 102.

With the help of other prisoners,

Gleason obtained his weapon, a long rope “braided so that way it
wouldn’t break” while in the showers.

J.A. 89.

After obtaining the rope, Gleason still needed to find a
way to get close enough to Cooper to use it, no easy feat in Red
Onion, where the prisoners are separated in individual metal
cages

even

during

outdoor

recreation

2

time.

Gleason

took

Cooper had been transferred to Red Onion because he set
fire to objects at least twice in order to escape gang violence
at his previous prison. Cooper’s behavior at Red Onion seems to
have been the motivating factor in drawing Gleason’s attention.
J.A. 106 (Gleason targeted Cooper because he “messed up and
started running his mouth” and told “lies.”).

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advantage of a widespread system of favor-trading between guards
and inmates in order to get close to Cooper.
he

made

effectuate

arrangements
his

plan.

with

Halsey,

According

to

Gleason says that

Meade

and

Gleason,

Mullins

prisoners

to

would

often arrange to stay inside their cells during recreation time
in exchange for other favors from guards.

Guards participated

in this exchange because they were saved the work of bringing
the prisoner onto the recreation yard. To execute his plan to
kill Cooper, Gleason says that he arranged with Halsey and Meade
to assign prisoners to the metal cages in the recreation yard so
that Cooper’s and Gleason’s cages would be adjacent.

J.A. 91

(“Well, I told [Meade] I’d stay in plus other things, and I
don’t want to get into that.”).

According to both Meade and

Mullins, inmates usually chose their own cages.
(“They usually just choose their own cage.

J.A. 230-31

. . .

We’d just

take them to whichever case they went to.”); J.A. 245 (“They
chose.

When they come out, they went to the rec, the cage that

they just walked out and went to the cage that they wanted to go
into.”).

Halsey

and

Meade

deny

an

agreement

with

Gleason

regarding the placement of inmates on that day.
After securing a place next to Cooper in the recreation
yard, Gleason still had to get the rope into the cage.
Gleason testified that he had help in doing so.

Again,

Before inmates

are brought onto the recreation yard, they are strip-searched by
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On the day of the killing, Meade and Mullins

searched Gleason (Halsey was elsewhere at the time).

Although

Gleason had the rope in his shirt during the search, Meade and
Mullins did not find it.
and

Mullins

J.A. 93.

purposefully

Gleason claims that Meade

performed

an

insufficient

because of an agreement to provide them with favors.

search
Gleason

also testified that his plan to kill Cooper was common knowledge
among the inmates.

J.A. 94 (the inmates “all knew what was

going on.”); see also J.A. 97 (“All of [the inmates] except for
Sparrow”).

He also says that the prison officials “all knew

what was going on.
heads-up.” 3
agreement

J.A.
with

And plus Martin [Rodgers] gave them all a
94.

Meade

Gleason

or

and

that

Mullins

they

in

turn

performed

an

deny

any

improper

search.
Gleason also testified that Halsey deliberately looked the
other

way

during

the

killing

itself.

3

According

to

Gleason,

An affidavit by Tony Adams, a sergeant at Red Onion,
states that Rodgers “made a statement to us that there were
going to be problems on the recreation yard.
He did not
elaborate on the date, time or parties that would be involved
and gave no details or specifics about what he knew or how he
knew this.”
J.A. 66.
Other affidavits support Adams’s
statement
that
Rodgers
did
not
provide
any
actionable
information. See J.A. 69 (“Rodgers provided no specific, exact
or detailed information to staff about anything that was going
to happen on the recreation yard or in any other location.”);
J.A. 72 (“Rodgers was not specific and refused to give
details”).

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Halsey was in the control tower overlooking the yard in the
moments before he strangled Cooper.

Gleason also testified that

Halsey saw him place the rope around Cooper’s neck.

J.A. 118.

Then, according to Gleason, “She looked down, that’s when they
all looked up, were inside talking and what not, and I pulled
the rope up and that’s when she shut window and never seen her
again.”

J.A. 118.

Halsey, however, denies this account, and

instead says she was in another part of the prison during the
killing. 4

According to Travis McCoy, the Warden of Red Onion at

the time, “staffing policy did not require security staff be
present

on

the

recreation

yard

during

offender

recreation.”

J.A. 76.
Video evidence shows that Gleason strangled Cooper, walked
away, and then strangled him again.

When Halsey went to the

yard

their

to

bring

the

inmates

back

to

cells,

she

found

Cooper’s body and radioed Baird, a sergeant at the prison, for
assistance.
was

too

Although medical assistance was administered, it

late:

Cooper

died

at

the

scene. 5

The

Virginia

4

It is undisputed that neither Mullins nor Meade where near
the yard when the killing happened.
5

Gleason was put to death by electrocution on January 16,
2013. Justin Jouvenal, Va. Executes Convicted Killer Who Sought
Death
Penalty,
Washington
Post,
Jan.
16,
2013,
www.washingtonpost.com/local/va-executes-convicted-killer-whosought-death-penalty/2013/01/16/89802e00-6015-11e2-99406fc488f3fecd_story.html.

8

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Department

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of

Corrections

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later

disciplined

all

of

the

Defendants for their roles in Cooper’s death.
Acting

as

personal

representative

and

administrator

of

Cooper’s estate, Kim Strickland brought this action under 42
U.S.C.

§ 1983,

alleging

that

Defendants

Amendment of the U.S. Constitution. 6
summary
immunity.

judgment

for

Defendants

violated

the

Eighth

The district court granted
on

the

basis

of

qualified

Specifically, the district court found that none of

the four Defendants violated the Eighth Amendment because they
were

not

deliberately

indifferent

serious harm” to Cooper.
(1970).

to

a

“substantial

risk

of

Farmer v. Brennan, 511 U.S. 825, 834

This appeal followed.

II.
“Whether
question

of

a
law

party
we

is

entitled

review

de

novo

to

summary

using

the

judgment
same

is

a

standard

applied by the district court.”

Henry v. Purnell, 652 F.3d 524,

531 (4th Cir. 2011) (en banc).

“Summary judgment is appropriate

only if taking the evidence and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party,
‘no material facts are disputed and the moving party is entitled
6

Strickland originally brought two additional counts, which
are not on appeal here: Count II, a supervisory liability claim,
and Count III, a civil conspiracy claim.

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to judgment as a matter of law.’”

Id. (quoting Ausherman v.

Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir. 2003)).

Thus, in

this case, we view the facts in the light most favorable to
Strickland.
At the center of this appeal is the district court’s grant
of

qualified

immunity

immunity

public

“balances
officials

to

two

all

of

important

accountable

the

Defendants.

interests—the
when

they

Qualified

need

to

exercise

hold
power

irresponsibly and the need to shield officials from harassment,
distraction,
reasonably.”
Put

and

when

they

perform

their

duties

Pearson v. Callahan, 555 U.S. 223, 231 (2009).

differently,

officials

liability

qualified

performing

immunity

discretionary

shields

functions

.

“government
.

.

from

liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights
of

which

a

reasonable

person

would

have

known.”

Harlow

v.

Fitzgerald, 457 U.S. 800, 818 (1982).
Consequently, a defendant is entitled to qualified immunity
in a § 1983 case if (1) his or her conduct did not violate the
constitutional right at issue or (2) the right was not “clearly
established” at the time of the incident.
232,

236.

Succeeding

on

either

prong

Pearson, 555 U.S. at
is

sufficient

for

entitlement to qualified immunity, and courts may begin with
either prong.

Id. at 234.
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As set forth below, we agree that Baird and Halsey did not
violate

the

Eighth

Amendment

because

they

did

not

take

any

action or inaction such that a reasonable factfinder could find
that they were deliberately indifferent.
reasonable

factfinder

inferences

in

Mullins

could

Strickland’s

exhibited

such

determine,
favor,

We conclude that a

drawing

however,

indifference.

We

all
that

also

reasonable
Meade

conclude

and
that

Cooper’s Eighth Amendment right in this instance was clearly
established.

Accordingly, we will reverse the district court’s

grant of qualified immunity as to Meade and Mullins, but affirm
as to Baird and Halsey.

III.
We
whether

begin
the

with

the

Defendants

constitutional

rights.

first

prong

violated
The

of

qualified

Cooper’s

Eighth

Eighth

Amendment

immunity:
Amendment

requires

prison

officials to “protect prisoners from violence at the hands of
other prisoners.”

Farmer, 511 U.S. at 833.

Officials must take

“reasonable measures to guarantee the safety of the inmates.”
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984).

In other words,

“[t]he government and its officials are not free to let the
state of nature take its course.”
“The

burden

is

on

the

prisoner

Farmer, 511 U.S. at 833.
to

demonstrate

that

prison

officials violated the Eighth Amendment, and that burden is a
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Pyles v. Fahim, 771 F.3d 403, 408-09 (7th Cir.

2014) (citing Whitley v. Albers, 475 U.S. 312, 325 (1986)).
Not every “injury suffered by one prisoner at the hands of
another

.

.

.

translates

into

constitutional

liability

prison officials responsible for the victim’s safety.”
511 U.S. at 834.

for

Farmer,

Instead, the Supreme Court has outlined two

requirements for an Eighth Amendment failure to protect claim.
First, “a prison official’s act or omission must result in the
denial

of

‘the

necessities.’”
347

(1981)).

constitutional

minimal

civilized

measure

of

life’s

Id. (quoting Rhodes v. Chapman, 452 U.S. 337,
In

other

rights

words,

must

be

the

denial

of

“sufficiently

the

prisoner’s

serious.”

Id.

Second, the prison official must have a “sufficiently culpable
state

of

mind,”

purposefully

id.,

caused

which

the

means

harm

or

the

acted

official
with

either

“deliberate

indifference,” Wilson v. Seiter, 501 U.S. 294, 302-03 (1991).
The first requirement is easily satisfied here.
murdered

by

another

prisoner.

The

Cooper was

deprivation

of

his

constitutional rights is unquestionably “sufficiently serious.”
Whether

prison

officials

acted

with

“deliberate

indifference” for purposes of the second requirement presents a
closer

call.

In

the

Eighth

Amendment

context,

deliberate

indifference “lies somewhere between negligence and purpose or
knowledge: namely, recklessness of the subjective type used in
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Brice v. Va. Beach Corr. Ctr., 58 F.3d 101, 105

(4th Cir. 1995).

For a prison official to be liable, “the

official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.”

Farmer, 511 U.S. at 837.

The test is subjective, not objective.

Brice, 58 F.3d at 105.

A

he

prison

official

is

not

liable

if

or

she

“knew

the

underlying facts but believed (albeit unsoundly) that the risk
to which the facts gave rise was insubstantial or nonexistent.”
Farmer, 511 U.S. at 844; see also Rich v. Bruce, 129 F.3d 336,
338 (4th Cir. 1997) (finding that a prison official was not
liable, because he did not actually draw the inference that the
inmate was exposed to a substantial risk of serious harm).
This
Defendants

case,

therefore,

hinges

on

were

subjectively

aware

of

whether
the

risk

any

of

the

of

harm

to

Cooper, shown either through direct evidence or circumstantial
evidence of actual knowledge. 7

Makdessi v. Fields, __ F.3d __,

No. 13-7606, 2015 WL 1062747, at *5-6 (4th Cir. 2015).

7

A court can use circumstantial evidence to infer that an
official “must have known” of the risk based on “the very fact
that the risk was obvious.” Farmer, 511 U.S. at 842. “In other
words, although the obviousness of a particular injury is not
conclusive of an official’s awareness of the injury, an injury
might be so obvious that the factfinder could conclude that the
guard did know of it because he could not have failed to know of
it.” Brice, 58 F.3d at 105 (citation omitted).

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Strickland claims the defendants were subjectively aware of
the

risk

to

Cooper

because:

(i)

they

knew

that

Gleason

had

killed in the past and that he threated to kill again; and (ii)
they facilitated the murder by, inter alia, failing to properly
strip-search

Gleason

and

recover

the

murder

weapon.

As

explained below, we disagree that mere knowledge of Gleason’s
threats rises to the level of deliberate indifference.

On the

other hand, taking the facts in the light most favorable to
Strickland, we conclude that failing to adequately strip-search
Gleason

for

agreement,

the

does

murder

weapon,

constitute

pursuant

deliberate

to

a

pre-arranged

indifference.

Because

Meade and Mullins were responsible for conducting the search, we
reverse as to them only.

1.
We start with Gleason’s criminal history and his declared
intent to kill again.
have

taken

more

another inmate.

Strickland argues that Defendants should

precautions

given

Gleason’s

past

murder

of

The parties dispute whether the defendants were

actually aware of Gleason’s criminal past and the reason for his
transfer

to

Red

Onion. 8

Whether

8

the

Defendants

knew

about

Before the district court, Strickland’s counsel conceded
that Mullins, Meade, and Halsey were not formally notified of
Gleason’s declaration that he would kill again.
J.A. 160
(Continued)
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Gleason’s’ past threats is ultimately not dispositive, however.
The

relevant

question

is

whether

the

Defendants

subjectively

believed Gleason posed a substantial risk of serious harm to
other inmates, not whether they simply knew he had previously
stated he would kill again.

See

Farmer,

511

U.S.

at

837

(noting that to hold an official liable, “the official must both
be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference”).

In other words, there is no evidence that any

of the Defendants drew the inference that Gleason posed a risk
to other inmates due to his criminal history.

(Halsey); 172S, 172T (“[T]hey weren’t notified in any specific
way of his promise to kill again . . . .”).
Only Baird was
briefed about Gleason’s murder of Watson.
In contrast, Meade,
Mullins, and Halsey testified that they discovered Gleason’s
past through rumor.
See J.A. 284 (Mullins) (“I’d asked
somebody, you know, what he had done, and they told me about the
Wallens Ridge incident.”); J.A. 227 (Meade) (“Just hearsay.
I
don’t know if it was true.
But an incident that occurred at
another facility.”).
Gleason also testified that Defendants were (at least
informally) aware of his criminal past and declaration to kill
again. J.A. 85 (“In fact up front they were telling COs to look
at it on the Internet. So each one that came by they asked me
about it and I said yeah, I said that. Everybody knew that.”).
In other words, although Meade, Mullins, and Halsey were not
formally told by any prison official to be especially careful
with Gleason, they had at least some reason to believe Gleason
intended to kill again.

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Here, the undisputed testimony shows that the Defendants
simply did not believe that Gleason was capable of acting on his
threats.

Instead, they believed Red Onion’s maximum security

procedures would thwart any efforts to kill again.

See J.A. 83

(“And I was like well, you heard what I said in court.
this

is

Red

Onion,

this

doesn’t

happen

up

He said

here.”

(Gleason

commenting referring to Tracy Ray, the Warden at Red Onion));
J.A. 102 (“Well, Tracy Ray, the Major, and a lot of the staff
said no one has ever been killed in segregation—first they said
nobody’s
sought

ever

to

been

make

the

killed

at

Red

Department

of

Onion.”).

Gleason

Corrections

look

because his threats were not being taken seriously.
03.

instead
“stupid”

J.A. 102-

Instead, Defendants regarded Gleason as (to the extent a

twice-convicted killer can be) pleasant and respectful.

See

J.A.

and

151

(Halsey)

(stating

that

Gleason

was

“talkative

friendly” most of the time and “nice[] and respectful[]); J.A.
227 (Meade) (stating he “[n]ever had any issues with” Gleason).
Regardless

of

whether

the

Defendants

were

aware

of

Gleason’s threats then, they did not subjectively infer that
Gleason posed a substantial risk of serious harm.

Accordingly,

prong one fails to the extent it is based solely on Gleason’s
past threats.

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2.
Although
history

did

the
not

Defendants’
demonstrate

awareness
deliberate

of

Gleason’s

criminal

indifference,

Gleason

also describes a network of favor-trading between guards and
inmates at Red Onion that facilitated the circumstances of his
murder of Cooper.

Specifically, Gleason states that there were

two discrete instances of favor-trading that facilitating his
murder

of

Cooper:

(1)

arranging

with

Meade

and

Halsey

the

placement of inmates on the recreation yard such that Gleason
was next to Cooper, and (2) agreeing with Meade and Mullins to
be insufficiently searched prior to entering the recreation yard
so that he could keep the braided rope on his person.

Only the

second instance of favor-trading, with Meade and Mullins, rises
to the level of deliberate indifference.
Regarding the first instance of favor-trading, Gleason says
that he arranged with Halsey and Meade to ensure that he was put
next to Cooper on the recreation yard.

At the time of this

case’s events at Red Onion, inmates were permitted by the guards
to

select

their

own

cages

while

on

the

recreation

yard. 9

Although Red Onion officials stated in affidavits that inmates
9

An affidavit by the warden states that prison guards are
not permitted to engage in favor-trading with inmates. J.A. 5556 (“‘Trading’ and/or doing favors for offenders is against VDOC
policy and is not condoned or tolerated.”); J.A. 58 (affidavit
of assistant warden).

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are to be placed in cages randomly, that policy, viewing the
evidence in the light most favorable to Strickland, was widely
ignored.

See

J.A.

63,

76.

Gleason

seeking

to

be

next

to

Cooper, then, was not a particularly notable event at Red Onion.
Strickland presents no evidence that Halsey or Meade were aware
that Gleason’s desire to be next to Cooper posed a substantial
risk of serious harm to Cooper.
cage

selection

as

a

Indeed, the guards regarded the

normal

activity

in

prison

life.

Consequently, Halsey and Meade were not deliberately indifferent
by allowing Gleason to select cages.
Second,

according

to

Gleason,

Meade

and

Mullins

then

granted Gleason a much more unusual favor: the right not to be
thoroughly searched prior to entering the yard as required by
prison policy.

See J.A. 62 (“It is policy that all offenders

are strip searched when leaving their cells for any reason . . .
.”).

Unlike the cage selection policy, there is no evidence in

the record that the strip-search policy was widely ignored by
the guards.
Of

course,

a

merely

negligent

or

careless

strip

search

would not result in liability under the deliberate indifference
standard articulated in Farmer.
and

Mullins

entered

into

an

But Gleason states that Meade
agreement

to

avoid

a

thorough

search, an important safety regulation for inmate safety at the

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prison. 10

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As part of that agreement, they

failed to search

Gleason’s long-sleeved shirt, which concealed the braided rope.
Deliberate
“declined

to

indifference
confirm

suspected to exist.”

can

be

found

if

the

official

inferences

of

risk

that

he

strongly

Farmer, 511 U.S. at 843 n.8.

And as we

stated in Makdessi, “prison officials may not simply bury their
heads

in

the

sand

1062747, at *6.

and

thereby

skirt

liability.”

2015

WL

Under this standard, Meade and Mullins need not

have known that there was a certain risk of harm to Cooper or
other inmates, of course, only that there was a “substantial
risk of serious harm.”

Farmer, 511 U.S. at 834.

We conclude

that they would have had reason to know of such risk here.
Surely Meade and Mullins suspected that Gleason wished to avoid
a search in order to bring contraband into the yard – why else
would he want to avoid a search?

And even if Meade and Mullins

were not aware of the precise nature of the contraband (i.e., a
rope),

absolute

certainty

of

danger

knowledge of “substantial risk” is.

is

not

required

–

only

Farmer, 511 U.S. at 834.

Certainly permitting an inmate to bring an object of some kind
onto

the

yard

presented

such

a

10

risk.

Thus,

a

reasonable

The record contains ample evidence regarding the
importance of this policy. See J.A. 191 (policy was enacted to
prevent inmates from throwing feces, weapons, and other objects
from cage to cage).

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factfinder

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conclude

could

Pg: 20 of 24

Meade

that

and

Mullins

must

have

subjectively known that there was a substantial risk of serious
harm to Cooper or other inmates. 11

3.
Unlike
participate
entered

the

Meade
in

and

the

yard.

Mullins,

inadequate
Indeed,

Halsey
search

the

and
of

only

Baird

Gleason
evidence

did

not

before

he

supporting

Strickland’s claims against Baird is her claim that Baird knew
about Gleason’s criminal history and threats to kill again.

As

we have held above, mere knowledge of those threats does not
constitute deliberate indifference.

Consequently, the district

court correctly granted summary judgment to Baird on the basis
of qualified immunity.
The

district

court

also

correctly

entitled to qualified immunity.

held

that

Halsey

is

Strickland’s primary allegation

11

In order to find liability, Meade and Mullins need not be
aware of a specific risk to Cooper when allowing Gleason to
bring an object onto the yard. Farmer, 511 U.S. at 843 (stating
that if officials are aware of a risk of inmate violence, “it
would obviously be irrelevant to liability that the officials
could not guess beforehand precisely who would attack whom”).
To meet the deliberate indifference standard, moreover, Meade
and Mullins did not have to enter into an agreement for the
purpose of harming Cooper.
As the Supreme Court has noted,
deliberate indifference “is satisfied by something less than
acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.” Id. at 835.

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against Halsey is that she saw Gleason with the rope from a
control room above the prison, yet did nothing to stop him. 12
Gleason

testified

that

Halsey

saw

Gleason

holding

the

rope.

J.A. 118 (“[B]ecause when she opened up that window I had it in
my hands.

She could see it clear as day.”).

Then, according to

Gleason, “[s]he looked down, that’s when they all looked up,
were inside talking and what not, and I pulled the rope up and
that’s when she shut window and never seen her again.”
118.

J.A.

Halsey denies seeing the rope or being in the control room

at all during the events that led to Cooper’s murder.
Although we must credit Gleason’s testimony and make all
reasonable

inferences

in

Strickland’s

favor,

Gleason’s

statements about Halsey amount to mere speculation.

A party

“cannot create a genuine issue of material fact through mere
speculation
Beale

v.

Gleason

or

Hardy,
merely

recreation yard.
Halsey saw.

the

of

one

inference

upon

F.2d

213,

214

(4th

1985).

speculates

that

Halsey

769

building

Cir.

saw

the

another.”

rope

Here,
on

the

Of course, Gleason cannot know for sure what

Strickland offers no other evidence supporting her

12

Tracy Ray, the Warden of Red Onion at the time, states
that although there is a control room overlooking this part of
the prison, there “is no ‘video room’ at Red Onion for purposes
of observing offenders on the recreation yard. The Intel Office
has access to live and recorded video footage; however, no staff
person is posted to monitor live videos.”
J.A. 55; see also
J.A. 58 (similar statement by assistant warden at Red Onion).

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claims about Halsey’s activities on the recreation yard.

By

contrast, as to Meade and Mullins, as discussed above, Gleason
stated personal knowledge of an explicit agreement with them for
an insufficient search.
“Mere unsupported speculation . . . is not enough to defeat
a summary judgment motion.”

Ennis v. Nat’l Ass’n of Bus. &

Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).

Because

Strickland offers no other evidence about Halsey’s activities on
the recreation yard other than Gleason’s speculative testimony,
we will affirm the district court’s grant of qualified immunity
as to Halsey.

IV.
Having concluded that only Meade and Mullins violated the
Eighth

Amendment,

those

two

defendants

“may

nevertheless

be

shielded from liability for civil damages if their actions did
not

violate

‘clearly

established

statutory

or

constitutional

rights of which a reasonable person would have known.’” Saucier
v. Katz, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). 13

Consequently, we must determine

13

The district court did not reach question because it
decided that Meade and Mullins did not violate Cooper’s
constitutional rights at all.

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Cooper’s

Eighth

Pg: 23 of 24

Amendment

rights

were

“clearly

established” at the time of his murder.
“[C]onduct violates clearly established law when, at the
time of the challenged conduct, the contours of a right are
sufficiently

clear

that

every

reasonable

officer

would

understood that what he is doing violates that right.”

have

Ashcroft

v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) (quotation omitted).
But

the

court

need

not

determine

that

the

“very

action

in

question has previously been held unlawful.” Doe ex rel. Johnson
v. S.C. Dep't of Soc. Servs., 597 F.3d 163, 176 (4th Cir. 2010)
(citation omitted). Indeed, “general statements of the law are
not inherently incapable of giving fair and clear warning, and
in

other

instances

a

general

constitutional

rule

already

identified in the decisional law may apply with obvious clarity
to the specific conduct in question.” United States v. Lanier,
520 U.S. 259, 271 (1997).
That

is

the

case

here.

Farmer

applies

with

“obvious

clarity”: the case clearly establishes that the Eighth Amendment
protects prisoners from violence perpetrated by other inmates.
See Price v. Sasser, 65 F.3d 342, 346 (4th Cir. 1995) (stating
that “the law governing failure to protect [inmates] . . . was
unclear in some important respects” prior to Farmer).

Other

circuits similarly agree that Farmer, and similar cases, clearly
established that the Eighth Amendment is violated when an inmate
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commits violence against another inmate.

See, e.g., Cantu v.

Jones, 293 F.3d 839, 845 (5th Cir. 2002) (“[T]he constitutional
right

of

offenders

to

be

protected

from

harm

was

clearly

established at the time of the attack.”); Bistrian v. Levi, 696
F.3d 352, 367 (3d Cir. 2012) (inmate “had a clearly established
constitutional right to have prison officials protect him from
inmate violence.”); Curry v. Crist, 226 F. 3d 974, 977 (8th Cir.
2000)

(“Prison

Amendment

right

inmates
to

have

be

a

clearly

protected

from

established
violence

by

Eighth
other

inmates.”).
Here, a reasonable officer would know that intentionally
violating prison policy by failing to strip-search an inmate,
pursuant

to

an

agreement

with

that

inmate,

inmates at a substantial risk of serious harm.

would

put

other

Consequently, we

reverse the district court’s grant of qualified immunity as to
Meade and Mullins and remand for further proceedings.

V.
For

the

foregoing

reasons,

the

district

court’s

order

granting summary judgment to Defendants is
AFFIRMED IN PART;
REVERSED AND REMANDED IN PART.

24